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MSPB Changes Course on Disparate Penalties

by | Sep 11, 2022 | Developments At The MSPB

On May 31, 2022, the Merit Systems Protection Board (MSPB) issued its decision in Singh v. U.S. Postal Service2022 MSPB 15.  The Board overturned a line of decisions concerning disparate penalties analysis, claiming it was reinstating the standards for disparate penalties analysis from prior to 2010.

Mr. Singh was removed by the Postal Service on charges of alleged misuse of position, acceptance of gifts from subordinates, and improper conduct.  After Mr. Singh appealed the removal to the MSPB, the Postal Service rescinded the removal and proposed Mr. Singh’s demotion.  The MSPB administrative judge upheld two of the three charges against Mr. Singh after hearing, and upheld the demotion penalty.  On petition for review, Mr. Singh—among other arguments—challenged the administrative judge’s Douglas factor analysis on penalties and claimed that the administrative judge erred in refusing to compel discovery concerning consistency of penalties in comparison to other Agency disciplinary actions.

The Board in deciding Mr. Singh’s appeal overturned a series of prior Board decisions (including decisions previously analyzed in this blog) which took a more expansive view of how similar other disciplinary matters had to be in order to provide a basis for arguing the defense of disparate penalties (that is, that the employee’s penalty is far worse than the penalties that the agency imposed on other employees in similar circumstances).   Instead, the Board shifted back to something closer the approach in its pre-2010 precedent, under which a disparate penalty argument required that the appellant and the comparators be in the same work unit and under the same supervisors. The one difference from the post-2010 precedent retained by the Board derived from the decision by the Court of Appeals for the Federal Circuit in Williams v. Social Security Administration, 586 F.3d 1365 (Fed. Cir. 2009).  In Singh, the Board characterized Williams as saying that there was no per se bar to arguing disparate penalties where the comparator has a different supervisor or work unit than the appellant—but that the difference in supervisor or work unit was an important factor in determining whether the penalties should be deemed comparable, and that a disparate penalties claim should be based on a close connection between the misconduct or some other factor, with the pool of comparators being those whose misconduct or other circumstances closely resemble appellant’s.  The Board also reinstated the requirement that a disparate penalties argument only works if the agency is shown to have knowingly imposed the disparate penalty without justification.  The Board emphasized the requirement that disparate penalties comparison applies only with the same or similar offenses, and noted that disparate penalties is only one of the 12 Douglas factors, and not the most important factor.  Applying theses new legal standards, the Board found that administrative judge did not abuse discretion in refusing to compel discovery.

The Board then rejected Mr. Singh’s other arguments.  It found no due process violation when the deciding official contacted a manager for information not presented to appellant, on the grounds that the information received merely clarified or confirmed information already in the record.  The Board rejected the argument that the demotion decision was ultra vires (i.e. a disciplinary decision made by someone other than a person with the authority to make the decision).  The Board recognized that ultra vires is a valid argument and that Board precedent requires that the putative deciding official be the person who actually makes the decision to impose discipline, but found it factually unsubstantiated on this record, as the alleged instruction to the deciding official to take the disciplinary action occurred days after the deciding official had already made the disciplinary decision.   The Board rejected Mr. Singh’s other challenges to credibility determinations and reasonableness of the penalty.  Accordingly, the demotion was upheld.

If you are a federal employee facing a proposed disciplinary action, are seeking legal representation any other matter before the Merit Systems Protection Board, or otherwise have questions regarding your legal rights, please consider contacting Gilbert Employment Law, P.C. to request an initial consultation.